Newcomer v. Kean

Guasón and Alvey, J. dissented, and the latter filed the following dissenting opinion. I do not concur in the mode adopted of disposing of the question raised on the motion in arrest made in this case. The question is certainly exceedingly narrow and technical; but as long as we have in force a technical system of special pleading, we must observe the rules and technicalities of that system. Otherwise there would be no certainty in the administration of the law.

And however much a Judge may regret the defeat of an action, and it may be of a right, by means of a technical defect, yet, if the defect or omission objected to be of a character not to be cured bjr the statutes of jeofails or amendments, he has no alternative but to allow the objection to prevail. He is not justified in overcoming the objection by straining language beyond its natural and ordinary import, and forcing upon it a meaning that the words employed utterly fail to express. Nor can he supply material words to make up for the omissions of the pleader. ¹²⁵ In this case it is not questioned hut that the action was required to be brought in the names of the husband and wife jointly and that the declaration should have concluded to their damage, and not to that of either the husband or the wife alone. The reason of this requirement is, that the right of survivorship exists, if the death of either plaintiff should occur before the judgment be paid. 1 Ghitty PI., 83.

And it is well settled that the failure either to join husband and wife in the action, in a case like the present, or to conclude the declaration to the damage of both plaintiffs, is fatal on motion in arrest of judgment. Newton vs. Hatter, 2 Ld. Raym., 1208. The conclusion of the declaration in this case is, “to the great damage of the pl’ff, and the plaintiff claims $10,000 damages.” How, upon this claim of damage, it was altogether uncertain for whom the judgment should be entered, — whether for the husband or the wife,- — the natural import of the language employed laying the damage to, and making claim for, only a simple plaintiff.

If, in laying this claim, it was supposed that the damage recovered would enure to the exclusive benefit of either the wife or the husband severally, and it was with that view that the singular form was adopted, such claim would be fatally defective on motion in arrest, according to the case of Newton vs. Hatter, supra. And the very uncertainty of what was intended by the pleader in this respect, as well as the failure to lay the damage to both of the plaintiffs, rendered the defect available to the defendant on motion in arrest. In my opinion, however, the defect, notwithstanding it was subject to motion in arrest, could have been reached and corrected by the power of amendment, even after verdict, and motion in arrest entered, if application had been made for that purpose. The Code, Art. 75, sec. 23, provides, that “ any amendment may be made at any time before the jury retire to make up their verdict, in cases of jury trial, and in cases of ¹²⁶ demurrer and other trials before the Court, at any time before judgment is entered.” Tbe defect in the present declaration was in no manner involved in tbe issue framed, or tbe matter of fact to be tried by tbe jury ; and hence was not required to be amended before the jury retired.

The motion in arrest asked that the judgment for the plaintiff be arrested or withheld, on the ground of an error apparent on the face of the record, which vitiated the proceedings. This raised a question exclusively for the Court, and made a case of trial by the Court, to determine the sufficiency of the record upon which to enter judgment, and that before judgment entered; and this brings the case within the